Pence wants Supreme Court to dismiss public records case after release of white paper

Olivia Covington for www.theindianalawyer.com

After a “white paper” detailing a legal challenge to a federal immigration order was leaked as part of a journalistic investigation, attorneys for former Gov. Mike Pence are petitioning the Indiana Supreme Court to dismiss a court case seeking to uncover the contents of the white paper, saying the case is now moot.

On Wednesday, the online publication Rewire released the white paper that was circulated to the chiefs of staff of various Republican governors, including then-Gov. Pence, in 2014. Then Texas Gov.-elect Greg Abbott’s chief of staff, Daniel Hodge, sent out the legal document to encourage other states to join a Texas lawsuit challenging a federal executive order on immigration.

After former Indiana Attorney General Greg Zoeller declined to add the state to the federal suit, Pence hired Barnes & Thornburg LLP as outside counsel, prompting Indianapolis labor attorney Bill Groth to file a request under the Access to Public Records Act seeking various emails and documents related to the state’s decision to join the legal challenge. When Pence responded, several documents were redacted while others, including the white paper, were withheld entirely.

The Indiana Court of Appeals rejected Pence’s argument that his so-called “executive immunity” prohibited judicial review of his response to public records requests, but upheld his decision to withhold the white paper under the common interest doctrine, saying its contents represented two litigants seeking third-party legal advice.

Groth had already petitioned the Indiana Supreme Court to grant transfer in the case when Rewire released the white paper Wednesday. In a Notice Regarding Change in Circumstances filed late Wednesday evening, Pence’s Barnes & Thornburg attorneys claimed that because the white paper, the only document at issue in the Supreme Court transfer petition, had been released, the case should be dismissed as moot.

But Groth, through his attorney, Greg Bowes, immediately filed a response alleging that there were other issues still to be resolved that are keeping his case alive.

Specifically, Bowes pointed to the recent revelations that Pence used a private AOL email account to discuss state business while he was governor. Official emails from that account were released earlier this month, but in an earlier motion to remand, Groth and Bowes expressed concern that the contents of those previously undisclosed email could have been subject to his APRA request had they been sent through the governor’s official account.

“Because of this possibility, the controversy has not ended,” Bowes wrote in his response.

Additionally, under Indiana Code 5-14-3-9(i), if the requesting party prevails, “a court shall award reasonable attorney’s fees, courts costs, and other reasonable expenses of litigation.” The governor’s “improper refusal” to release the white paper led to Bowes spending dozens of hours working on Groth’s case, which, thus, keeps the attorney fees issue alive, Bowes said. As long as that issue is alive, the case cannot be moot, he said.

Further, the white paper contains phrases such as, “We would welcome your state’s participation in this effort” and “Please consider whether joining in this legal action is the appropriate course for your State” – phrases that, according to Bowes, undercut the theory that the white paper was protected under the common interest doctrine. Rather than acting as a request for legal advice, Bowes said those statements prove that the white paper was a solicitation from the Texas governor’s office, which would not be protected from public view.

Bowes also urged the court to accept transfer to address other legal theories raised by the Court of Appeals, including the “deliberative materials” exception to APRA requests.

“In 2016, the federal government received 788,769 public record requests,” Bowes wrote Wednesday. “It is likely that Indiana agencies will also have thousands of public records requests in the future, and this Court would serve those agencies well by issuing its first opinion on the parameters of the deliberative materials exception.”

Finally, even if the release of the white paper did resolve the case, Bowes urged the court to take up the issue as a matter of “great public interest” under the exception laid out in In Re Lawrence, 579 N.E.2d 32, 37 (Ind. 1991).